Weston v. Shavers et al

Filing 39

ORDER APPROVING AND ADOPTING 34 PROPOSED FINDINGS AND RECOMMENDATIONS in their entirety as this Court's findings in all respects; denying 36 37 38 motions; and certifying that an in forma pauperis appeal taken from the Order and Judgment dismissing this action is considered frivolous and not in good faith. Signed by Judge Kristine G. Baker on 12/08/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RODNEY WESTON
ADC #132833
v.

PLAINTIFF

Case No. 5:13-cv-00270-KGB/HDY

KELLI SHAVERS et al.

DEFENDANTS
ORDER

The Court has reviewed the Proposed Findings and Recommendations submitted by
United States Magistrate Judge H. David Young (Dkt. No. 34), and the objections filed (Dkt. No.
36). After carefully considering the objections and making a de novo review of the record in this
case, the Court concludes that the Proposed Findings and Recommendations should be, and
hereby are, approved and adopted in their entirety as this Court's findings in all respects. It is
therefore ordered that plaintiff Rodney Weston’s claims against Kelli Shavers are dismissed
without prejudice.
The Court writes separately to address Mr. Weston’s motions to amend complaint (Dkt.
Nos. 36, 38) and motion for preliminary injunction (Dkt. No. 37). The Court previously adopted
Judge Young’s Proposed Findings and Recommendation to dismiss with prejudice Mr. Weston’s
claims that defendants Randy Watson and Moses Jackson, III, retaliated against him for having
sexual contact with an Arkansas Department of Correction staff member (Dkt. No. 35). Mr.
Weston requests an opportunity to amend his complaint to add new claims of retaliation against
Mr. Watson and Mr. Jackson and to request a bench trial. Specifically, Mr. Weston now claims
that Mr. Watson and Mr. Jackson are retaliating against him for filing this lawsuit by classifying
him as a Prison Rape Elimination Act (“PREA”) inmate and segregating him from the prison

population. Mr. Weston claims that these actions violate prison policy and constitute retaliation.
His motion for preliminary injunction asks the Court to enjoin this alleged retaliation.
“[A] party moving for a preliminary injunction must necessarily establish a relationship
between the injury claimed in the party’s motion and the conduct asserted in the complaint.”
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). The Court is not convinced that Mr.
Weston’s new claims of retaliation are sufficiently related to the conduct asserted in the
complaint.

Regardless, prison policy appears to allow segregation of inmates involved in

inmate-on-staff sexual contact for the security of the inmate and staff. Moreover, Mr. Weston
admits that, after filing grievances, he has been reclassified from a PREA inmate to “a potential
sexual offender.” Lastly, as Judge Young explained, even if these actions violated prison policy,
any failure to respond appropriately to grievances or to follow policy in evaluating Mr. Weston’s
grievances or disciplinary issues is not actionable by itself, and the Court determines that Mr.
Weston’s due process rights were not violated. See Buckley v. Barlow, 997 F.2d 494, 495 (8th
Cir. 1993) (per curiam) (holding that failure to respond to a grievance altogether is not a
constitutional violation); Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (finding that
violation of prison policy by itself is not actionable under 42 U.S.C. § 1983). It is therefore
ordered that Mr. Weston’s motions to amend complaint (Dkt. Nos. 36, 38) and motion for
preliminary injunction (Dkt. No. 37) are denied.
The Court has now dismissed without prejudice Mr. Weston’s claims against Ms. Shavers
and dismissed with prejudice Mr. Weston’s claims against Mr. Watson and Mr. Jackson. The
Court certifies that an in forma pauperis appeal taken from the Order and Judgment dismissing
this action is considered frivolous and not in good faith.

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SO ORDERED this the 8th day of December, 2014.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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